Mathew Ndau Kiambati & James Gichuki Magondu v Embakasi Ranching Company Limited [2016] KEHC 5390 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  303 OF 2011

MATHEW NDAU KIAMBATI………………...APPELLANT/RESPONDENT

VERSUS

JAMES GICHUKI MAGONDU…………....1ST RESPONDENT/APPLICANT

EMBAKASI RANCHING COMPANY LIMITED….…….2ND RESPONDENT

RULING

This appeal is listed today for the hearing of an application dated 29th January 2016 for dismissal of the appeal for want of prosecution. However, upon my perusal of the file, I note that the cause of action relates to a dispute over the ownership/occupation and or title to land.  The subject land is described as plot No. 124B, 125B, 126B, 127B RUAI, Nairobi.  The prayers by the plaintiff  MATHEW NDAU KIAMBATI who is  the respondent herein against  the  defendants/appellants  JAMES GICHUKI MAGONDUand  EMBAKASI RANCHING COMPANY LIMITED as per the plaint dated  18th November  2005 were for a permanent  injunction restraining the defendants by themselves, their agents  and or servants from  trespassing   find or interfering and  or  dealing in any manner  with the  plaintiff’s   plot Nos.12B,125B,125B, 126B and 127B situated  in RUAI-NAIROBI.

In view  of the above, it is clear that albeit the suit in the lower court and therefore this appeal arising   from the decision of the lower court  was filed  before the effective  date of 27th August  2010 when the new  Constitution was  promulgated  and or in the transitional  period, it is clear to me that  the jurisdiction  of this court  to hear appeals  arising  from  disputes  relating to ownership/occupation or title  to land  was effectively ousted  by Article  165(5) (b) of the Constitution  which expressly provides that the High Court  shall have no jurisdiction  over such  disputes, which jurisdiction is vested in the  Environment and Land Court as  contemplated  in Article 162(2) (b) of the Constitution  and as provided for under Section 13(1)  of the Environment and Land  Court Act, 2011.

I note that this appeal was filed in 2011 vide Memorandum of Appeal dated 5th July 2011, which was in the transitional period and before the establishment and or operationalization of the Environment and Land Court.  The appeal has not been heard by this court although it was admitted to hearing on 12th May 2014.  The transitional period envisaged in part 5 Section 22 of the Transitional and consequential provisions of the Constitution on Administration of justice, in my view  are no longer applicable in view of the  establishment  and full operationalization  of the Environment and  Land Court   with the appointment   of competent  judges  to preside over  the court and hear and determine the disputes  as contemplated  in Article  162(2) (b)  of the Constitution.

Consequently, and for  want of jurisdiction, I can do no more  one thing  than down my tools and direct  that this appeal be and is hereby placed  before the Environment and  Land Court   for further consideration  and directions on the pending issues  as it may deem it just.

Orders accordingly.

Dated, signed and delivered at Nairobi this 18th day of April 2016.

R.E. ABURILI

JUDGE

18/4/2016